Citation Nr: 0933593
Decision Date: 09/08/09 Archive Date: 09/17/09
DOCKET NO. 96-32 408 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for residuals of a left
knee meniscectomy (left knee disability).
3. Entitlement to service connection for osteoarthritis of
the lumbar spine (low back disability), to include as
secondary to left knee disability.
4. Entitlement to service connection for avascular necrosis
of the left hip (left hip disability), to include as
secondary to left knee disability.
ATTORNEY FOR THE BOARD
Katie Molter, Associate Counsel
WITNESS AT HEARING ON APPEAL
Veteran
INTRODUCTION
The Veteran served on active duty from June 1959 to June
1965. He has also had periods of service in the United
States Air Force Reserves and in the Rhode Island National
Guard.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a April 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Providence, Rhode Island, that denied the Veteran's claims of
entitlement to service connection for hypertension, the post-
operative residuals of a left knee meniscectomy,
osteoarthritis of the lumbar spine, and avascular necrosis of
the left hip. The Veteran timely appealed these
determinations to the Board.
The Board remanded the case to the RO in April 1999 for
further development and adjudication; and in November 2004 to
afford the Veteran a requested hearing, which was then held
in May 2005 before the undersigned Veterans Law Judge.
The Board issued a decision on October 17, 2006 which denied
all four of the Veteran's claims. The Veteran filed a timely
appeal to the United States Court of Appeals for Veterans
Claims (CAVC). The CAVC issued a Memorandum Decision in
December 2008 vacating the October 2006 Board decision and
remanding the case for further proceedings.
The issues of entitlement to service connection for residuals
of a left knee meniscectomy (left knee disability),
entitlement to service connection for osteoarthritis of the
lumbar spine (low back disability), to include as secondary
to left knee disability, and entitlement to service
connection for avascular necrosis of the left hip (left hip
disability), to include as secondary to left knee disability
are addressed in the REMAND portion of the decision below and
are REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.
FINDING OF FACT
There is no competent evidence of record relating the
Veteran's current hypertension to service.
CONCLUSION OF LAW
Hypertension was not incurred in or aggravated by active
service, nor may it be presumed to have been so incurred. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304,
3.307, 3.309 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38
C.F.R. § 3.159, amended VA's duties to notify and assist a
claimant in developing the information and evidence necessary
to substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of the
information and evidence not of record that is necessary to
substantiate the claim, which information and evidence VA
will seek to provide and which information and evidence the
claimant is expected to provide. In compliance with 38
C.F.R. § 3.159(b), the notification should also include the
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim.
In this case, VA essentially satisfied the notification
requirements of the VCAA by means of letters dated in April
2002, July 2003, and September 2005. In those letters, the
RO informed the veteran of the types of evidence needed in
order to substantiate his claims of entitlement to service
connection for the claimed disabilities subject to this
decision. VA has also informed the veteran of the types of
evidence necessary to establish such claims, the division of
responsibility between the veteran and VA for obtaining the
required evidence; and VA requested that the veteran provide
any information or evidence in his possession that pertained
to such a claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b).
The VCAA requires that a notice in accordance with 38 U.S.C.
§ 5103(a) must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits, even if the adjudication occurred
prior to the enactment of the VCAA. See Pelegrini v.
Principi, 18 Vet. App. 112, 119-120 (2004).
The Board acknowledges that complete VCAA notice was only
provided to the Veteran after the initial unfavorable
decisions in this case, rather than prior to the initial
decision as typically required. However, in a case involving
the timing of the VCAA notice, the veteran has a right to a
VCAA content-complying notice and proper subsequent VA
process. See Pelegrini v. Principi, 18 Vet. App. 112, 119-
120 (2004). The notice letters were issued after the initial
unfavorable decision. Thereafter, however, he was afforded an
opportunity to respond, and the RO subsequently reviewed the
claims again and issued a statement of the case and
supplemental statement of the case. Under these
circumstances, the Board determines that the notification
requirements of the VCAA have been satisfied. Id; Quartuccio
v. Principi, 16 Vet. App. 183 (2002)
Additionally, where the claim involves service connection, as
in this case, the VCAA requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to specifically include a
requirement of notice that a disability rating and an
effective date will be assigned if a disability, to include
on an extraschedular basis, is awarded. Dingess v. Nicholson,
19 Vet. App. 473 (2006).
Although such notice was not provided until March 2006, the
Board finds no prejudice to the Veteran with the issuance of
a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993). In that regard, the Board below denies entitlement
to service connection for hypertension. Therefore, notice as
to the appropriate rating and effective date is moot as to
this claim.
The Board also finds that VA has made reasonable efforts to
obtain relevant record adequately identified by the Veteran.
Specifically, the information and evidence that have been
associated with the claims file consist of Veteran's service
treatment records, and post-service VA and private medical
records, including reports of VA examinations.
In sum, the Veteran has been provided with every opportunity
to submit evidence and argument in support of his claims, and
to respond to VA notices. Also, the actions taken by VA have
essentially cured or mooted any defect in the VCAA notice.
The purpose behind the notice requirement has been satisfied,
because the Veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his appealed claim.
II. Background
Review of the service medical records show that during a
March 1959 examination, blood pressure was measured as 130/80
(systolic/diastolic) sitting, and 126/70 recumbent, and
134/80 standing. During an April 1960 examination, blood
pressure was measured as 120/80 while sitting.
A clinical record dated May 12, 1961 showed that the Veteran
was admitted at the USAF Hospital at McConnell Air Force Base
for complaints of an upper respiratory infection. The
Veteran reported that during several annual physical
examinations his blood pressure had been elevated to a mild
degree. On admission blood pressure was found to be 210/100.
The Veteran's cold symptoms improved over two days, however,
his blood pressure continued to be in the range of 210/100.
The Veteran was started on medication and his blood pressure
subsequently dropped to 160/90 the next day, and to 140/90 on
the day after that. Two days later all medication was
discontinued, and blood pressure remained at the level of
140/90 until discharge from the hospital. The report
included a diagnosis of hypertension, benign, essential.
The Veteran was then transferred to the USAF Hospital, at
Lackland Air Force Base on the last day of May 1961 for
evaluation of possible high blood pressure. The clinical
record of that hospitalization includes a history that the
Veteran was first found to have slightly elevated systolic
blood pressure in 1958. At that time it was 145/70 to 75.
The treatment provider noted that physical examinations had
always been negative; and that in May 1961 it was 210/110,
and on May 26, 1961, all medications were discontinued and
his blood pressure remained at a relatively low level of
140/90. The treatment provider summarized the past history
as being essentially negative.
On physical examination, the blood pressure on admission was
160/90. During the course of the hospitalization, the blood
pressure consistently ranged between 120 to 130 (systolic)
and between 70 to 80 (diastolic). The treatment provider
noted that at no time did the Veteran demonstrate evidence of
hypertension; and he had not received any medications while
there and had been without symptoms. The treatment provider
opined that the Veteran had not been hypertensive while under
observation, and that in view of the labile nature of the
Veteran's hypertensive process in the past, it was felt that
the Veteran had in effect, benign vascular hyperreactivity.
During an April 1962 examination, the Veteran reported having
no problems with high or low blood pressure. On examination,
the Veteran's blood pressure was 136/88 sitting, 134/86
recumbent, and 138/88 standing.
An April 1962 narrative summary noted that blood pressure was
136/86; and was within normal limits.
During a November 1964 examination, the Veteran's blood
pressure was 120/74 sitting, 144/70 recumbent, and 122/80
standing.
At the time of his June 1965 discharge examination, the
Veteran reported complaints of having high or low blood
pressure. On examination, the Veteran's blood pressure was
116/74 sitting.
At the time of a May 1966 military medical examination, the
Veteran denied any medical or surgical history other than for
conditions unrelated to his left knee, left hip, lumbar
spine, and blood pressure. On examination, the Veteran's
blood pressure was 120/74 sitting, 144/70 recumbent, and
122/80 standing.
The report of a June 1977 military examination at the U.S.
Air Force Clinic at Hanscom Air Force Base, noted that in
1961 elevated blood pressure was first noticed. The Veteran
reported that he had had problems with high or low blood
pressure. Upon examination, the examiner noted that
diastolic pressure was slightly elevated on first reading.
The report shows that blood pressure was 138/88 sitting.
VA and private medical records are dated from 1978 through
January 2006. Private clinical records in the 1980s showed
that the Veteran was part of a high blood pressure program in
May 1983. At that time there was an impression of high blood
pressure. Subsequently, treatment records include
impressions of high blood pressure beginning in 1985.
A March 1992 VA general examination report notes that the
Veteran's blood pressure was 120/80. The report does not
contain any findings or diagnosis referable to the
hypertension.
During a May 2005 Video-Conference hearing before the
undersigned, the Veteran testified that the hypertension was
never treated in service. He stated that the hypertension
came up some time after service but that he could not
remember the exact date he was diagnosed. The Veteran
contended that he had elevated blood pressure readings in
service which would be sufficient for a diagnosis of
hypertension while on active duty, which was related to a
post-service diagnosis of hypertension.
During an October 2005 VA examination for hypertension, the
Veteran reported that he was diagnosed with hypertension in
1985; and that he did have a transient hypertensive episode
in 1961 in service. The examiner reviewed the claims file
history of the Veteran's hypertension and examined the
Veteran for his present condition. On examination, the blood
pressure reading was initially 112/43, on second reading it
was 120/60, and the third blood pressure reading was 118/64.
After examination, the report contained a diagnosis of
hypertension diagnosed mid-1980s, controlled on medication.
The examiner concluded with an opinion that the Veteran's
current hypertension, which was diagnosed in 1985, was not
likely related to his service time. In making that opinion,
the examiner noted that although the Veteran had an episode
of transient hypertension in May 1961, his blood pressure
normalized and remained within normal limits; and had no
further episodes of hypertension, transient or otherwise.
The examiner opined that it was unlikely that the Veteran's
hypertension diagnosis more than 20 years after his episode
in 1961 was related to this previous event. In an addendum,
a reviewing medical doctor concurred with the examination
report's findings and conclusion.
III. Pertinent Laws and Regulations
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or for aggravation of a pre-existing
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish
direct service connection for the claimed disorder, there
must be (1) medical evidence of a current disability; (2)
medical or, in certain circumstances, lay evidence of the in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999).
If a condition noted during service is not shown to be
chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b). Regulations also provide
that service connection may be granted for any disease
diagnosed after discharge when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
For certain chronic diseases, such as hypertension, a
presumption of service connection arises if the disease is
manifested to a degree of 10 percent within a year following
discharge from service. 38 C.F.R. § 3.307, 3.309. And
service connection may be granted for disability proximately
due to or the result of a service-connected disability and
where aggravation of a non service-connected disorder is
proximately due to or the result of a service-connected
disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet.
App. 439 (1995) (en banc).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The Board is charged with
the duty to assess the credibility and weight given to
evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001);
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the
Court has declared that in adjudicating a claim, the Board
has the responsibility to do so. Bryan v. West, 13 Vet. App.
482, 488-89 (2000); Wilson v.Derwinski, 2 Vet. App. 614, 618
(1992).
IV. Analysis
In this case, the Veteran has been diagnosed with
hypertension. Therefore, although the Board has reviewed the
lay and medical evidence in detail, the Board will focus its
discussion on evidence that concerns whether the Veteran's
current disability is related to a disease or injury in
service.
As discussed above, if chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b). Here, the record fails to show a continuity of
symptoms of hypertension. The evidence of record shows that
after the Veteran's episode of high blood pressure in 1961,
the Veteran was shown to have slightly elevated blood
pressure during a June 1977 USAF medical examination.
Starting in May 1983, the Veteran began to seek hypertension
treatment from his private treatment providers. In 1985 the
Veteran was diagnosed with hypertension.
The 2005 examiner stated that the Veteran's current
hypertension, which was diagnosed in 1985, was not likely
related to his military service. In making that opinion, the
examiner noted that although the Veteran had an episode of
transient hypertension in May 1961, his blood pressure
normalized and remained within normal limits; and had no
further episodes of hypertension, transient or otherwise.
Furthermore, the examiner stated that it was unlikely that
the Veteran's hypertension diagnosis more than 20 years after
his episode in 1961 was related to this previous event.
Although the Veteran did have documented occurrences of high
blood pressure while in service in 1961, it was described as
transient, lasting only days, and was related to a cold that
the Veteran was fighting. The next documented incidence of
hypertension was in 1977, approximately 15 years later, when
the Veteran's blood pressure was slightly elevated. It was
another 8 years before the Veteran was diagnosed with
hypertension in 1985. Thus, the record fails to show a
continuity of symptomatology after discharge to support the
claim.
The Board has considered the August 1996 VAMC record which
noted that the Veteran had a significant past medical history
of hypertension. However, this piece of evidence is not
highly probative. As stated above, the Veteran was diagnosed
with hypertension in 1985, thus, it is conceivable that a
treating physician would state that the Veteran had a
significant history of hypertension in 1996, some 11 years
after diagnosis, and presumably after an 11 year history of
continued hypertension. This piece of evidence does not aid
in establishing a continuity of symptomatlogy since the
Veteran's active service. It should be further noted that
this notation was made on a discharge summary that discussed
the Veteran's left total hip arthroplastly and was not made
in the context of an examination pertaining to hypertension.
In order to establish service connection for the claimed
disorder, there must be medical evidence of a nexus between
the claimed in-service disease or injury and the current
disability. Here, the record has failed to demonstrate such
a nexus. Therefore, based on the foregoing, the Board
concludes that the preponderance of the evidence is against
the Veteran's claim that he has hypertension which is related
to service.
Under these circumstances, the Board finds that the claim for
service connection must be denied. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, as the preponderance
of the competent, probative evidence is against the claim,
that doctrine is not applicable. See 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-
56 (1990).
ORDER
Entitlement to service connection for hypertension is denied.
REMAND
With respect the Veteran's remaining claims on appeal, the
Board has determined that further development is necessary.
The VA has a duty to assist a claimant in obtaining records
pertaining to the claim. 38 U.S.C.A. § 5103(A)(b). In the
case of records from a Federal department or agency,
particularly service treatment records, concerning the
Veteran's active service, VA's search efforts must continue
until they are obtained or until it becomes clear that they
do not exist or that further efforts will be futile. See
38 U.S.C.A. § 5103(A)(b)(3), (c); see also Hayre v. West, 188
F. 3d 1327, 1331 (Fed. Cir. 1999) (holding that a single
unsuccessful request for service treatment records does not
fulfill the duty to assist), overruled on other grounds by
Cook v. Principi, 318 F. 3d 1334 (Fed. Cir. 2002) (en banc).
After a thorough review of the claims file, the Board has
determined that the VA should make another attempt to obtain
all of the Veteran's service treatment records, specifically,
the Veteran's Pease Air Force Base (AFB) records from April
1963 for the treatment of a left knee injury.
Accordingly, the case is REMANDED for the following action:
1. Contact all appropriate sources, to
include the NPRC, as well the Department
of the Air Force (Air Force), the Air
Reserve Personnel Center, and the Air
National Guard Center, to locate the
Veteran's outstanding service medical
records, to include those pertaining to
his Rhode Island National Guard service.
The RO also should request directly from
the hospitals indicated all records
pertaining to treatment of the Veteran
from Pease AFB and the Naval Hospital in
Portsmouth, New Hampshire. All medical
records from Pease AFB should be
requested, to specifically include records
from April 1963 which show treatment for a
left knee injury.
All records obtained should be associated
with the claims file. If any requested
records are not available or the search
for any such records yield negative
results, that fact should clearly be
documented in the claims file.
2. After undertaking any additional
notice or development deemed appropriate,
readjudicate the issues on appeal. If the
benefits sought on appeal remain denied,
issue the Veteran an appropriate
supplemental statement of the case. The
requisite period of time for a response
should be afforded. Thereafter, the case
should be returned to the Board for
further appellate review, if otherwise in
order.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs